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Death and Mitigation

Robert van Hook and George Porter committed the same crime, aggravated murder, albeit under substantially different circumstances:  van Hook went to a gay bar to rob a  homosexual, went home with one, and killed him, while Porter killed his ex-girlfriend and her boyfriend.  Both were given the same penalty, death.  Both argued that the sentence should be overturned on the same grounds, that their lawyers had been ineffective in failing to present mitigating evidence.  Both then went the route of federal habeas corpus, and that's where their paths diverged:  van Hook was granted relief by the 6th Circuit, while Porter was denied relief by the 11th.

Their paths diverged once more:  last month, the Supreme Court reversed the 6th Circuit's decision in a unanimous, unsigned per curiam opinion, and on Monday, the same result befell the 11th Circuit's decision in Porter's case.

As just about everybody knows, a death penalty case involves two trials:  one to decide if the guy's guilty, and another to decide what to do with him.  In the vast majority of such cases, as in criminal cases generally, "whodunnit" isn't in controversy, so the focus is on saving the client's life.  It's probably the usual capital case anymore where much more time is devoted to preparation for the penalty phase of the trial than the guilt phase.

Just how far counsel have to go in preparing for that was the subject in both van Hook's and Porter's case.  In the former, the focus was on the ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases.  Back in 1985, when van Hook was tried, those guidelines consisted of a couple of pages exhorting counsel in general terms to discover and present information about "the defendant's background, education, employment record," and so forth.  The 6th Circuit had cited the 2003 Guidelines, however, by which time they'd become a 136-page tome, containing, as the Supreme Court noted, "detailed prescriptions for legal representation of capital defendant. . . specifying in exhaustive detail what attorneys should look for, where to look, and when to begin."  This was too much for the Court; the guidelines are simply that, not "inexorable commands with which all capital defense counsel 'must fully comply." 

The use of guidelines aside, the Court found that van Hook's lawyers had acted responsibly.  The 6th Circuit had faulted them for not interviewing some of van Hook's relatives, but the Court found that the lawyers had gotten almost all the same information from closer family members.  There comes a point where you've done all you could reasonably be expected to do.

That point wasn't reached by the attorney for George Porter.  He'd represented himself at trial, with standby counsel, but had decided to plead guilty near the close of the state's case, and the standby counsel wound up being the real counsel for the penalty phase.  Guess how that worked out.

The Supreme Court's opinion is a must read for habeas lawyers, especially on the question of deference to state court decisions, but that's probably not why you're reading this, so we'll leave that out.  What was critical to the Court was the extensive evidence of mitigating factors that Porter presented to the Florida courts in 1995, nine years after his conviction.  As is all too often the case, Porter had experienced a brutal upbringing; the opinion notes that "on one occasion, Porter's father shot at him for coming home late, but missed and just beat Porter instead."  Pretty bad when a beating is Plan B in the parental handbook. 

But far more compelling to the Court was the record of Porter's military service.  He'd enlisted in the Army at 17 and fought in the Korean War, and the opinion recites Porter's horrific combat experiences at length.  Porter came home from the war, but the war came home with him; "after his discharge, he suffered dreadful nightmares and would attempt to climb his bedroom walls with knives at night."

The state trial judge who first heard this evidence, and the 11th Circuit which reviewed it after the habeas proceeding, had shrugged it off  on the grounds that a couple of periods during which Porter had gone AWOL would have "reduced the impact of Porter's military service to 'inconsequential proportions.'"   Not so, said the Court:

Our Nation has a long tradition of according leniency to veterans in recognition of their service, especially for those who fought on the front lines as Porter did.  Moreover, the relevance of Porter's extensive combat experience is not only that he served honorably under extreme hardship and gruesome conditions, but also that the jury might find mitigating the intense stress and mental and emotional toll that combat took on Porter.  The evidence that he was AWOL is consistent with this theory of mitigation and does not impeach or diminish the evidence of his service.

Whether the impact of Van Hook and Porter comes to anything more meaningful than "you don't have to do everything, but you've got to do something" is debatable.  That the effectiveness of counsel at mitigation is going to continue to be a major problem is not.  One study showed that ineffective assistance of counsel claims are responsible for 37% of the reversals in capital cases; far behind, with 20%, are trial errors such as faulty jury instructions.  What's more, the effectiveness of much mitigating evidence is questionable; there's some research which indicates evidence of a horribly abusive childhood just results in jurors deciding that the defendant is such "damaged goods" that he's not worth saving.  In fact, a few years back in Poindexter v. Mitchell, one 6th Circuit judge suggested that the most competent way to represent a defendant in a capital case is to be incompetent in the penalty phase:  if you dig up all manner of "mitigating" evidence, the chances of the jury being impressed with it are small, while if you don't, the chances are very good that you'll be found incompetent down the road, and you'll have saved your client's life.

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